The UK’s Court of Appeal led by its second most senior judge, Lord Justice Maurice Kay, today handed down a judgment on the Batang Kali massacre case. It represents a turning point in the sixty five year campaign for justice by survivors, family members and thousands of supporters in Malaysia.

At their appeal hearing last November, four family members of the 24 unarmed civilians shot dead by British soldiers at Batang Kali village argued that Article 2 of the European Convention on Human Rights imposed a duty on the UK to commission an independent inquiry, despite the killings having occurred before the Convention was drafted and signed. Noting that the important principles on which their case was based had never before been tested in a UK court (judgment, para 71), the Court of Appeal today held it was “probable” their case would succeed in the European Court of Human Rights in Strasbourg (para 83), adding “the appellants have forged the first link in the chain” (para 85) to establish an inquiry duty.

The original investigation into the killings in 1948-49 was subjected to withering criticism in 11 paragraphs, the Court commenting “[w]e cannot escape the conclusion that the investigation at that time was woefully inadequate” (para 75). Later investigations, by the Metropolitan Police in 1970 and the Royal Malaysian Police in the 1990s, though incomplete, had unearthed evidence which “cast doubt on the original account” of a mass escape attempt being thwarted (para 82). This evidence included six of the soldiers involved confessing the killings were “murder” committed “in cold blood” (paras 37 and 43). The Court observed:

“The confessions which arose in 1969-1970 were of potential significance and remain so, not least because the investigation within which they emerged was brought to an abrupt halt. They have never been tested or discredited. The sum of knowledge has been significantly increased by the work of the Royal Malaysian Police twenty years ago but they were unable to secure meaningful co-operation from the United Kingdom authorities” (para 82).

All this meant there was a connection between the killings, the original inadequate investigation, the UK’s signature and ratification of the European Convention on Human Rights and the subsequent failure to undertake an inquiry when the new evidence came to light:

“The ‘genuine connection’ test focuses not only on what took place, pursuant to the article 2 procedural obligation, after the critical date but also on what ‘ought to have taken place’. In view of the limited nature of the investigation which took place before the critical date and the potential significance of the new material which has emerged since the critical date but which has never been subjected to the full rigour of independent evaluation, it is our view that, whilst we cannot predict with certainty what the ECtHR might decide, it is probable that it would find the ‘genuine connection’ test to be satisfied in this case” (para 82).

But the Court went on to hold that the Human Rights Act could not be used to enforce the family members’ Convention rights because the Supreme Court had not given clear guidance on the extent to which it applied to past events, noting that a “move in that direction would now be a matter for the Supreme Court rather than for us” (para 100) and “[i]t is for the Supreme Court in an appropriate case, to decide whether to change its jurisprudence so as to bring it into line” with current European Court of Human Rights case law, in particular theJanowiec decision which also concerned a historical massacre (para 86).

The Court concluded by rejecting arguments that the refusal to hold an inquiry was irrational under the common law and dismissing the Secretaries of States’ defence that the Malayan High Commissioner or Sultan of Selangor had been legally responsible for the troops actions:

“The deployment was a deployment of troops by the Crown in right of the Government of the United Kingdom, with the consequence that the Crown became accountable for the actions of the troops” (para 138).

The families are represented by Michael Fordham QC, Danny Friedman QC, Zac Douglas, Stephen Grosz and John Halford of Bindmans LLP. John Halford said today:

“Some might think it remarkable that present-day human rights standards could create a duty to investigate wrongdoing by British troops in a colonial village six decades ago and its cover up in the years that followed. But those standards are rooted in far older British principles, specifically the right to life and to its protection by laws to be enforced on an equal basis. The Batang Kali massacre occurred because, in Britain’s Empire, its principles were sometimes abandoned. The question the Court of Appeal has had to grapple with is whether they could be abandoned with impunity. It clearly thought not, but felt constrained by precedent to withhold a remedy. The victims’ families will now follow the straightforward directions it has given them to seek a final, just outcome. They will ask the Supreme Court to call the state to account for the killings.”

“Despite the dismissal of the families’ appeal, our journey to seek redress and justice has not come to an end. The destination is not too far off either. Either UK human rights law needs to catch up with Europe with the help of the UK Supreme Court, or the families will need to go to Europe for satisfaction.”